1) 2201/2017 Const. P. Muhammad Asif Ansari and Ors (Petitioner) V/S Pakistan Televison Corp. and ORs (Respondent)
Sindh High Court, Karachi
Tag Line:
the foremost questions involved in the present proceedings are whether the re-designation / induction of the private respondents as Producer Programs (G-5) was/is suffering from inherent disqualification under the PTVC rules, and whether the private respondents are holders of the public office, therefore, fall within the purview of sub-clause 1(b) (ii) of Article 199 of the Constitution and this Court has jurisdiction to entertain this petition?
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QUO WARRANTO
Approved for Reporting
Hon'ble Senior Pusine Mr. Justice Irfan Saadat Khan, Hon'ble Mr. Justice Adnan-ul-Karim Memon(Author)
Order Date: 04-JUN-21
2) 1872/2016 Suit Saleem Butt.. (Plaintiff) V/S Pakistan & others (Defendant)
Sindh High Court, Karachi
Tag Line:
Challenge to the vires of section 230(2) of the Income Tax Ordinance, 2001 on the ground of delegation of excessive legislative power ??? not successful. While making such challenge, the Plaintiff had also to demonstrate infringement of a Fundamental Right. SRO 115(I)/2015 re the conferring of powers and functions on the DG I&I, was within the jurisdiction of the FBR. Effect of striking-down of same SRO by another High Court ??? discussed. The invoking of section 176 does not militate against the concept of deemed assessment under section 122 of the Ordinance. Malafides had to be pleaded with particulars.
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DECLARATION
Approved for Reporting
Hon'ble Mr. Justice Adnan Iqbal Chaudhry(Author)
Order Date: 31-MAY-21
3) 169/2020 Const. P. Fajjar Din (Petitioner) V/S Fed. of Pakistan and Others (Respondent)
Sindh High Court, Karachi
Tag Line:
This Constitutional Petition has been filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, praying this Court to issue a writ of certiorari/ mandamus to call for the records relating to the Compulsory Retirement Order dated 01.11.2012 and Appellate Order dated 30.10.2017 passed by the respondent-Airport Security Force (hereinafter referred to as `ASF'), and to quash the same and to direct the respondents to reinstate services of the petitioner as an Inspector (ASF).
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SERVICE
Approved for Reporting
Hon'ble Senior Pusine Mr. Justice Irfan Saadat Khan, Hon'ble Mr. Justice Adnan-ul-Karim Memon(Author)
Order Date: 01-JUN-21
4) 2589/2021 Const. P. Saddique Ali Laghari (Petitioner) V/S Fed. of Pakistan and Others (Respondent)
Sindh High Court, Karachi
Matter:REDUCTION OF SURETY
Approved for Reporting
Hon'ble Mr. Justice Nazar Akbar(Author), Hon'ble Mr. Justice Muhammad Faisal Kamal Alam
Order Date: 20-MAY-21
5) 789/2018 Suit Mst. Nadia Shakeel & another (Plaintiff) V/S Shagufta Baqar & another (Defendant)
Sindh High Court, Karachi
Tag Line:
There is no concept of amendment in the disposed of memo of petition for Letter of Administration in respect of ONE identified deceased on subsequent death of another person who was legal heir of the deceased whose petition has been disposed of prior to the death of the other person
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DECLARATION
Approved for Reporting
Hon'ble Mr. Justice Nazar Akbar(Author)
Order Date: 04-JUN-21
6) 154/2021 Const. P. TARIQ MASOOD (Petitioner) V/S SHER MUHAMMAD DIN & OTHERS (Respondent)
Sindh High Court, Karachi
Topic: Sindh Rented Premises Ordinance,1979
Tag Line:
The respondent may have proved the ownership of the property but then the relationship of landlord and tenant has to be established independently. It has to be proved through reliable evidence and documents that applicant/respondent apart from being owner of property was also the landlord of the occupant.
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RENT MATTER
Hon'ble Mr. Justice Muhammad Shafi Siddiqui(Author)
Order Date: 09-APR-21
7) 44/2021 M.A. Pakistan International Airlines Corporation Ltd (Appellant) V/S The Court of District Judge, Khi (East) & another (Respondent)
Sindh High Court, Karachi
Topic: Succession Act, Carriage By Air Act, 2012 (Rule 6 of 6th Schedule)
Tag Line:
Precisely the gist of law and the succession application provides
that the litigation commenced for issuance of a certificate in terms of
Rule 1, 2 and 6 of Sixth Schedule of the ibid Act 2012. It enabled one of
the legal heirs of the deceased to pursue the proceedings on behalf of
all legal heirs who sustained damages to claim compensation from the
airline.
-Respondent No.2 approached District Judge/ respondent No.1 for
issuance of requisite succession certificate. The District Judge/
Respondent No.1 however in terms of order impugned in these
proceedings treated such compensation as an asset left by the
deceased/victim and by considering it as part of succession application
and has taken action in terms of the impugned order, which action is
being challenged by the appellant/PIA in these proceedings. I disapprove
the observation of the District Judge to the extent whereby recovery
process was initiated.
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SUCESSION MATTERS Advocates:Mr.Mehmood Y. Mandviwala(),Mr. Farrukh Usman()
Approved for Reporting
Hon'ble Mr. Justice Muhammad Shafi Siddiqui(Author)
Order Date: 03-JUN-21
8) 271/2021 Suit Muhammad Asim (Plaintiff) V/S The Federation of Pakistan & Others. (Defendant)
Sindh High Court, Karachi
Tag Line:
Audit notice issued by the Commissioner beyond jurisdiction, could not be remedied by transferring the same to the Commissioner having jurisdiction.
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SUIT FOR DECLERATION
Hon'ble Mr. Justice Adnan Iqbal Chaudhry(Author)
Order Date: 02-JUN-21
9) 150/2015 Spl. Cus. Ref. A. Collector of Customs (Applicant) V/S The Customs Appellate Tribunal Bench-III & another (Respondent)
Sindh High Court, Karachi
Tag Line:
Customs:- Amnesty Scheme once granted; no further demand of 1% flood Relief Surcharge can be raised.
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CUSTOM MATTER
Approved for Reporting
Hon'ble Mr. Justice Muhammad Junaid Ghaffar(Author), Hon'ble Mr. Justice Agha Faisal(Author)
Order Date: 01-JUN-21
10) 322/2021 S.M.A Aiman Fatima D/o Hasan Mahmood (Petitioner) V/S Fozia Hasan and others (Respondent)
Sindh High Court, Karachi
Matter:LETTER OF ADMINISTRATION
Approved for Reporting
Hon'ble Mr. Justice Nazar Akbar(Author)
Order Date: 28-MAY-21
11) 33/2017 Judicial Companies Misc. Mozaffar Islam & another. (Applicant) V/S Dilkusha Enterprises (Pvt.) Ltd. & others. (Respondent)
Sindh High Court, Karachi
Matter:WIND UP
Approved for Reporting
Hon'ble Mr. Justice Nazar Akbar(Author)
Order Date: 27-MAY-21
12) 3309/2011 Const. P. M/S Ibrahim Fibres Ltd (Petitioner) V/S Prov. of Sindh and ors (Respondent)
Sindh High Court, Karachi
Tag Line:
Infrastructure fee / cess levied vide Sindh Finance Act, 2017 applicable retrospectively w.e.f. 01.07.1994 is intra vires; all petitions stand dismissed to that effect; however, Insofar as the first four versions of law introduced through Sindh Finance Act, 1994, amended through Sindh Finance Act, 1996, the Sindh Finance (Amendment) Ordinance, 2001, and the Sindh Finance (Second Amendment) Ordinance, 2001 are concerned, their applicability on the petitioners who had litigated earlier and were Appellants in Sanofi Aventis(PLD 2009 Karachi 65), has attained finality and is a past and closed transaction, notwithstanding promulgation of its fifth version vide Sindh Finance (Amendment) Ordinance, 2006, further amended by The Sindh Finance (Amendment) Act, 2007 (Sindh Act No: II of 2007, and The Sindh Finance (Amendment) Act, 2009 (Sindh Act No: III of 2009);
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INFRASTRUCTURE CESS
Approved for Reporting
Hon'ble Mr. Justice Muhammad Junaid Ghaffar(Author), Hon'ble Mr. Justice Agha Faisal
Order Date: 04-JUN-21
13) 315/2021 Const. P. Waqas Ahmed S/o Waqar Ahmed (Petitioner) V/S Mst. Maryam Hafeez and others (Respondent)
Sindh High Court, Karachi
Topic: Guardian and Ward Act, 1890
Tag Line:
Though under section 14 of the Family Court Act, 1964a decision is appealable however considering the facts and circumstances when interim meeting was ordered to be arranged in terms of the order ofthe trial Court theorder was not interfered by the appellate Court. Trial Court has exercised their right and maintained by appellate Court and such discretion being rightly exercised cannot be interfered. There is nothing to interfere in the interim arrangement,which seems to be lawful and justified.
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FAMILY MATTER
Hon'ble Mr. Justice Muhammad Shafi Siddiqui(Author)
Order Date: 15-APR-21
14) 2388/2020 Const. P. Arifa Khatoon (Petitioner) V/S The Governor of Sindh / Chancellor & Ors (Respondent)
Sindh High Court, Karachi
Matter:SERVICE
Approved for Reporting
Hon'ble Senior Pusine Mr. Justice Irfan Saadat Khan(Author), Hon'ble Mr. Justice Adnan-ul-Karim Memon
Order Date: 31-MAY-21
15) 269/2020 Const. P. Muhammad Arif Memon (Petitioner) V/S Province of Sindh & Others (Respondent)
Sindh High Court, Karachi
Tag Line:
Through this petition, the petitioner has prayed that the respondents be directed to issue notification in respect of his retirement and to pay his post-retirement benefits and outstanding salary.
Read more Matter:
PENSIONARY BENEFITS
Approved for Reporting
Hon'ble Senior Pusine Mr. Justice Irfan Saadat Khan(Author), Hon'ble Mr. Justice Adnan-ul-Karim Memon
Order Date: 01-JUN-21
16) 3/2021 M.A. M/s. Jiangsu Dajin Heavy Industry Co. Limited (Appellant) V/S Port Qasim Authority (PQA) and others (Respondent)
Sindh High Court, Karachi
Topic: General Clauses Act, 1897 (Section 24A), PPRA Rules, 2004 (Rule 36), PPRA Rules, 2004 ( Rule 25, 29, 30 and 31)
Tag Line:
- Indeed, it appears that it was more than a month after opening of the bid that the appellant made an attempt to rectify its material inability by furnishing a separate/counter bank guarantee from Bank AlHabib for both the tenders. This deficiency could not have been resurrected as by then the ship sailed. These belated attempts would have amounted to a modification of the tender documents, which is not permissible under Rule 31 of Rules 2004. Eventually only those whose technical bids were found to be in consonance with the terms of the invitation, were liable to be considered for further steps and were considered accordingly.
-Petitioner being aware of the said tender conditions participated and having participated in the tender cannot challenge or dislike prerequisites meant for technical qualification. He could only expect judicious treatment within the playing rules however, it was too late for appellant when it realized that playing conditions were not palatable to it. The situation faced by appellant based on the aforesaid facts is not res integra as a number of judgments are in the filed covering the issue as settled law.
- Even if I have to measure bidding terms on the touchstone of malice and mala fide, I would come out with understanding that these terms are for every one and not to exclude anyone. These are commercial transactions and decisions in this regard should base on strict compliance of terms of tenders whereas equity and fair play based on financial offer is not primary concern. Even if someone intends to impress by showing better financial offer, he has to qualify first on technical grounds. It is the overall impact till completion of job that needs serious consideration by procuring agency. Whether a bidder has the ability to deliver as per terms of tenders and having capacity to ensure project???s completion should be the primary concern of procuring agency. There is thus nothing which could lead to conclude that the process ended up in a decision of rejecting technical bid of appellant was flawed.
- Any term within frame of law is also not open for a judicial review even under the hierarchy of procurement laws as Rule 25 enables the procuring agency to require bid security not exceeding five per cent of the bid price to be furnished by every bidder and procuring agency may save its effectiveness for a period as they required in terms of Rule 26.
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AGAINST THE ORDER Advocates:Zaheer-ul-Hasan Minhas()
Approved for Reporting
Hon'ble Mr. Justice Muhammad Shafi Siddiqui(Author)
Order Date: 03-JUN-21
17) 1736/2013 Const. P. Akhlaque Hussain Memon and Ors (Petitioner) V/S Province of Sindh and Ors (Respondent)
Sindh High Court, Karachi
Tag Line:
whether the post of Additional/Assistant Advocate General could be filled amongst District Attorneys as per the Sindh Law Officers (Conditions of Service Rules), 1940 as amended up to date; and, whether between the notification dated 10.5.2016 bearing S.REG:1(22)2015/117 and notification dated 9.4.2018 bearing S.REG.4(07)/2018 which one is to prevail; and, whether the service structure for Deputy District Attorney and District Attorney in Solicitor Department, Government of Sindh needs to be streamlined ?
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SERVICE
Approved for Reporting
Hon'ble Senior Pusine Mr. Justice Irfan Saadat Khan, Hon'ble Mr. Justice Adnan-ul-Karim Memon(Author)
Order Date: 03-JUN-21
18) 3184/2021 Const. P. Tahira Haneef (Petitioner) V/S Province of Sindh and Others (Respondent)
Sindh High Court, Karachi
Tag Line:
In the light of the above discussion, in our view, a deputationist could not be treated as an aggrieved person, because she has no vested right to remain on a post as deputationist forever or for a stipulated period and can be repatriated at any time to her parent department more particularly in the light of aforesaid decisions of the Honorable Supreme Court. Reference is also made to the case of Dr. Shafi-ur-Rehman Afridi V/s CDA, Islamabad through Chairman and others (2010 SCMR 378). Even otherwise she cannot continue to serve on deputation in Sindh Government after her removal from service by the parent department, as discussed supra.
Read more Matter:
SERVICE
Approved for Reporting
Hon'ble Senior Pusine Mr. Justice Irfan Saadat Khan, Hon'ble Mr. Justice Adnan-ul-Karim Memon(Author)
Order Date: 03-JUN-21
19) 3502/2021 Const. P. Syed Babar Hashmi (Petitioner) V/S Govt. of Sindh and Others (Respondent)
Sindh High Court, Karachi
Tag Line:
We do not agree with the statement of the learned counsel for the Petitioner on the aforesaid assertions for the simple reason that compulsory retirement from service is a major penalty under service jurisprudence and falls within the ambit of expression terms and condition of service of the civil servant, therefore, the jurisdiction of all other courts is barred by the provision of Sindh Service Tribunals Act, 1973 read with Article 212(2) of the Constitution. On the aforesaid proposition, we are fortified with the decision rendered by the Hon???ble Supreme court in the case of Ali Azhar Khan Baloch vs. Province of Sindh [2015 SCMR 456]
Read more Matter:
SERVICE
Approved for Reporting
Hon'ble Senior Pusine Mr. Justice Irfan Saadat Khan, Hon'ble Mr. Justice Adnan-ul-Karim Memon(Author)
Order Date: 03-JUN-21
20) 265/2020 Const. P. Muhammad Salman Khan Baloch (Adv) (Petitioner) V/S Syed Mustafa Kamal & Ors (Respondent)
Sindh High Court, Karachi
Tag Line:
Judgment passed by Division Bench comprising Mr. Justice Muhammad Ali Mazhar and Mr. Justice Arshad Hussain Khan in C.P. No.D-265 of 2020 (writ of quo warranto) filed by Mohammad Salman Khan Baloch against Syed Mustafa Kamal, Ex City Nazim (Mayor) of Karachi for his disqualification. The petition has been dismissed.
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ELECTION MATTER
Approved for Reporting
Hon'ble Mr. Justice Muhammad Ali Mazhar(Author), Hon'ble Mr. Justice Arshad Hussain Khan
Order Date: 04-JUN-21
21) 3520/2021 Const. P. Zahid Hussain Shah Naqvi (Petitioner) V/S Addl I.G Sindh and Others (Respondent)
Sindh High Court, Karachi
Tag Line:
official accommodation
Read more Matter:
ACCOMODATION
Approved for Reporting
Hon'ble Senior Pusine Mr. Justice Irfan Saadat Khan, Hon'ble Mr. Justice Adnan-ul-Karim Memon(Author)
Order Date: 04-JUN-21
22) 1272/2020 Const. P. Mst. Salma @ Ume-Salma (Petitioner) V/S Province of Sindh, through Secretary Home Department Sindh Secretariat, Karachi & others (Respondent)
Sindh High Court, Bench at Sukkur
Approved for Reporting
Hon'ble Mr. Justice Nazar Akbar, Hon'ble Mr. Justice Muhammad Faisal Kamal Alam
Order Date: 05-MAY-21
23) 2415/2016 Suit Saleem Butt (Plaintiff) V/S Pakistan and Others (Defendant)
Sindh High Court, Karachi
Tag Line:
Given the mechanism in-built in section 177 of the Income Tax Ordinance, which includes the providing of reasons in writing to the taxpayer, the power conferred on the Commissioner to call for record under section 177(1) of the Ordinance, does not by itself offend Article 25 of the Constitution. The question then, whether such power has been used unlawfully, is different, and one that may vary with the circumstances of each case. While making such challenge, the Plaintiff had also to demonstrate infringement of a Fundamental Right. The invoking of section 177(1) does not militate against the concept of deemed assessment under section 122 of the Ordinance. Malafides had to be pleaded with particulars.
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DECLARATION
Approved for Reporting
Hon'ble Mr. Justice Adnan Iqbal Chaudhry(Author)
Order Date: 31-MAY-21
24) 1/2017 M.A. Show Time Cable & Datacom Pvt Limited (Appellant) V/S PEMRA & Another (Respondent)
Sindh High Court, Karachi
Topic: Pakistan Electronic Media Regulatory Authority (Television Broadcast Station Operations) Regulations, 2012, Pakistan Electronic Media Regulatory Authority Rules, 2009 (Rule 5), PEMRA Ordinance, 2002 (section 13), PEMRA Ordinance, 2002
Tag Line:
Two propositions/counts are as under:
(i) That for the impugned decision an opinion was sought from the Regional Council of Complaints which had no jurisdiction under the ibid Ordinance to comment and/or recommend any opinion ,as far as dispute is concerned;
(ii) That even if such recommendations are ignored to have been forwarded by the Council of Complaints and the impugned order be seen as an independent decision of PEMRA then again, the details of the outstanding dues does not seems to generate from PEMRA Ordinance 2002, Regulations 2011-12 and PEMRA Rules 2009, and hence are/were illegal and unlawful, and could be struck down by this Court on merit.
-So far as the first question as raised by the appellant is concerned, is answered in affirmative that the Council of Complaints had no jurisdiction for rendering opinion/recommendation to PEMRA ???under the Ordinance??? and its role in this regard and the advice sought is of no avail and merits no consideration; it should have been an independent order of PEMRA in view of provisions of PEMRA Ordinance.
- Schedule-B attached to these rules enables PEMRA to recover in-house channel fee for cable TV. Table VI provides licence fee of Rs.175,000/-upto10,000 subscribers as B-5 category which category appellant is enjoying followed by annual renewal of Rs.87,500/-. This amount is being paid by the appellant in terms of said rules as reflected in the outstanding dues chart hereinabove. It also enable the licensor PEMRA to recover Rs.24/-per subscriber per year which is a subscriber fee(Table VI), disclosed in horizontal column 2 in the subject chart incorporated in the impugned order. Table IX deals with in-house channel licence fee and is chargeable to all categories from B-1 to B-10.
-Thus, in view of aforesaid rules and regulations, the claim is legitimate and I do not see any transgression of the PEMRA authority in claiming the amount mentioned in the impugned decision.
-.It is pertinent to point out that rationale and vires of such levy and charge were argued by appellant???s counsel as the fee and other claims are claimed to be disproportionate. Perhaps these arguments could have served better had it been a case of challenging the vires of regulations and rules.
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AGAINST DECISION OF PEMRA Advocates:Ms. Sana Akram Minhas(),Mr Kashif Hanif(8551)
Approved for Reporting
Hon'ble Mr. Justice Muhammad Shafi Siddiqui(Author)
Order Date: 28-APR-21
25) 284/2018 H.C.A Famous Brands (Private) Limited (Appellant) V/S Samsonite IP Holdings S.A.R.L & another (Respondent)
Sindh High Court, Karachi
Tag Line:
By moving an application under order VII rule 11 a litigant does not surrender to the jurisdiction of the Court. The jurisdiction is conferred by law based on facts. A litigant may be right or wrong in asserting that the Court had no jurisdiction or that the suit is barred by law. But, this act of litigant would neither confer and/or bestow nor take away any jurisdiction which in fact is conferred by law. Actions of parties prior to litigation leads to constitution of a cause to initiate proceedings in Court of competent jurisdiction.
- If the two applications were not moved simultaneously and would have been filed one after the other, will a litigant still be debarred from filing the other application such as Order VII Rule 10 CPC.A simple answer to this proposition is ???No??? as rejection of plaint has its own reasons whereas return of plaint has its own. In an application under order VII rule 11 a litigant has only to show that it does not disclose a cause of action; the relief claimed is undervalued or is not properly valued and that the suit appears to be barred by law. None of these rational is available while entertaining an application under order VII rule 10 CPC, which is for return of plaint on numerous counts including but not limited to pecuniary jurisdiction and territorial jurisdiction. Courts when plaint is presented are required to see whether they are bestowed with pecuniary and territorial jurisdiction whereas under Order VII Rule 11 CPC Courts are required to see whether it is barred by law. The Court had to apply law to decide the issue of jurisdiction; it is the law that confers or takes away the jurisdiction of the Court and not based on moving of application under the aforesaid provision of law. Another proposition is that while entertaining and hearing application under order VII rule 11 CPC Court is empowered to return the plaint if the circumstances so warrants as required under the law.
-Section 86(3) of the Trademark Ordinance, 2001 provides that owner of the trademark which is entitled to protection under the Paris Convention as a well-known trademark shall be entitled to restrain by injunction the use in Pakistan of a trademark which, or the essential part of which, is identical or deceptively similar to the well-known trademark in relation to identical or similar goods or services, where the use is likely to cause confusion or where such use cause dilution of the distinctive quality of the well-known trademark.
- At the very outset there is nothing in the instant case which could attract Section 81 of Trademark Ordinance, 2001. The proprietor of the mark never gave up their right or it has not been demonstrated that for continuous period of five years from the date of alleged registration (in favour of user) in the use of registered mark in Pakistan, the proprietor was aware of it and that the proprietor ceased to be entitled on the basis of that earlier trademark or other rights. The engagement of the appellant with the respondent itself is enough to understand that there was no case of acquiescence at all. In fact the appellant conceded when they assumed the role of a distributor.
-The appellate Court normally avoid interfering in the orders of the interlocutory nature involving exercise of discretion as the appellate Court cannot substitute its own discretion unless when the discretion has been exercised arbitrarily, capriciously, perversely or where the Court has ignored certain principles regulating grant or refusal of injunction. The appellate Court is not required to reassess the material to reach a conclusion different from the one reached by the trial Court/learned Single Judge on the consideration that another view is possible.
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AGAINST THE ORDER
Hon'ble Mr. Justice Muhammad Shafi Siddiqui(Author), Hon'ble Mr. Justice Adnan-ul-Karim Memon
Order Date: 19-MAR-21
26) 5/2021 M.A. Jaag Broadcasting Systems (Private) Limited (Appellant) V/S Pakistan Electronic Media Regulatory Authority (Respondent)
Sindh High Court, Karachi
Topic: PEMRA Ordinance, 2002
Tag Line:
-Once a decision was taken for the withdrawal of the complaint and to refer it to Council of Complaints, Karachi (Sindh) there should be some logical reasons for not referring it to the Council of Complaints, Karachi (Sindh). Logic and reason existed when it was withdrawn from Council of Complaints, KPK to Council of Complaints, Sindh. It was exclusive prerogative of PEMRA and not Council of Complaints, KPK.
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AGAINST DECISION OF PEMRA
Hon'ble Mr. Justice Muhammad Shafi Siddiqui(Author)
Order Date: 14-APR-21
27) 71/2021 R.A (Civil Revision) Shakeel Abu Bakar S/o Abu Bakar (Applicant) V/S Muhammad Bilal Lakhani and another (Respondent)
Sindh High Court, Karachi
Tag Line:
In a summary suit pending in the Court of XI-AdditionalDistrict Judge Karachi East,conditional leave was grantedto the applicant who admitted the signatures on the dishonored cheques. Irrespective of the amount involvedand irrespective of the fact whether applicant could furnish surety of the amount, as directedby the trial Court, thereis no justificationin interfering in the order of the trial Courtwhich has exercised its jurisdiction/discretion by extending the leave subject to furnishing solvent surety in the sum of Rs.7.5 Million,which amount is equivalent to the amount of dishonored cheques involved in the summary suit.
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AGAINST THE ORDER
Hon'ble Mr. Justice Muhammad Shafi Siddiqui(Author)
Order Date: 15-APR-21
28) 115/2015 Cr.J.A Vijay Kumar & Other (Appellant) V/S The State (Respondent)
Sindh High Court, Circuit at Hyderabad
Tag Line:
Appellants were convicted by trial court based on his findings/judgment on circumstantial evidence and the mitigating circumstances for life imprisonment.
It cannot be confidently said that the victim was subjected to humiliation of sodomy by the accused since no such report of sperm test is available.
Furthermore, there is no eye witness of the incident as to how the victim was beaten and how he was kept in a gunny bag and thrown in Channel Wah. The incident allegedly took place on 20.04.2013 whereas the FIR was lodged on 23.04.2013. What happened in between is a mystery as even the lost seen incident was not corroborated to award life imprisonment. Even the alleged motive of ransom is not confidence inspiring as the Complainant???s family was a poor one.
The trial Court determined point No.1 on the basis of mitigating circumstances and the act of terrorism was also found in terms of point No.2. The trial Court based his findings/judgment on circumstantial evidence and the mitigating circumstances. There is no eye witness at all and even the story of the prosecution is not confidence inspiring as the boy who was allegedly abducted belongs to a poor class and it does not inspire confidence that somebody could abduct a child who belongs to a family from whom there are remote chances of any financial benefit.
The conclusion, which could be drawn by the above discussion, would be that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt and to such benefit they are entitled.
In view of the facts and reason discussed above, the conviction and sentence recorded against the appellants by way of impugned Judgment are set-aside;
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Hon'ble Mr. Justice Muhammad Shafi Siddiqui(Author), Hon'ble Mr. Justice Irshad Ali Shah
Order Date: 24-NOV-20
29) 99/2012 II.A. Abdul Rahim Memon (Appellant) V/S Mst. Amna Shaikh & ors (Respondent)
Sindh High Court, Karachi
Topic: Qanun-e-Shahadat Order, 1984
Tag Line:
Whatever is deposed by the attorney, he deposed it on behalf of the principal on instruction and hence nothing could be taken away on the count that it was hearsay
-Plaintiff/respondent has also examined one of the witnesses of the agreement whereas the other had expired and hence according to Qanoon-e-Shahadat Order, 1984, it was otherwise proved through the evidence available on record. On the other hand the appellant examined himself only without corroboration of any other witnesses. Even
defendants No.2 and 3 did not turn up to examine themselves and/or to support the appellant/defendant No.1.
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AGAINST ORDER
Hon'ble Mr. Justice Muhammad Shafi Siddiqui(Author)
Order Date: 10-APR-21
30) 2587/2021 Const. P. Iltaf Hussain & Ors (Petitioner) V/S Fed. of Pakistan and Others (Respondent)
Sindh High Court, Karachi
Matter:REDUCTION OF SURETY
Approved for Reporting
Hon'ble Mr. Justice Nazar Akbar(Author), Hon'ble Mr. Justice Muhammad Faisal Kamal Alam
Order Date: 20-MAY-21
31) 664/2008 Suit MRS. SAKINA SULEMAN (Plaintiff) V/S MUHAMMAD ARIF JANJUA (Defendant)
Sindh High Court, Karachi
Matter:DAMAGES
Approved for Reporting
Hon'ble Mr. Justice Nazar Akbar(Author)
Order Date: 24-MAY-21
32) 2526/2021 Const. P. Shumaila Salman Shah & Ors (Petitioner) V/S Fed. of Pakisan & Ors (Respondent)
Sindh High Court, Karachi
Tag Line:
Reasons assigned to the short order dated 23.4.2021 passed in C.P.Nos.D-2526 & 2623 of 2021 by Division Bench comprising Mr. Justice Muhammad Ali Mazhar and Mr. Justice Amjad Ali Sahito with regard to the prayer for awarding School Assessed Grades rather than holding physical exams for A and AS levels and O level.
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EXAMINATION
Approved for Reporting
Hon'ble Mr. Justice Muhammad Ali Mazhar(Author), Hon'ble Mr. Justice Amjad Ali Sahito
Order Date: 21-MAY-21
33) 2588/2021 Const. P. Sundor Khan (Petitioner) V/S Fed. of Pakistan and Others (Respondent)
Sindh High Court, Karachi
Matter:REDUCTION OF SURETY
Approved for Reporting
Hon'ble Mr. Justice Nazar Akbar(Author), Hon'ble Mr. Justice Muhammad Faisal Kamal Alam
Order Date: 20-MAY-21
34) 55/2019 R.A (Civil Revision) Muhammad Tobria S/o Ismail (Applicant) V/S The Board of Trustee KPT and others (Respondent)
Sindh High Court, Karachi
Topic: Karachi Port Trust Act, 1886 (Section 87)
Tag Line:
- The licences on which respondents were relying were expired somewhere in 2013. After the expiry of the alleged licences the Karachi Port Trust started receiving amount as being ???lease money??? and a period of lease was also disclosed in the challans issued by Karachi Port Trust to applicants though separately describing them as licensee as well.
- In this primary examination perhaps the respondents have not demonstrated to have passed the criteria and test to adjudge them (applicants) as licencees. Since the rental receipts were issued for a lease period, as available on record, therefore, notice under section 87 of the KPT Act for the eviction cannot be read to have been issued in pursuance of the aforesaid Act as a lessee cannot be evicted without due process of law. Hence, such action is not deemed to have been taken or purported to have been taken under the ibid Act.
- When an action was not deemed to have been taken under the Act, the barring provision of Section 87 would not apply and plaint in this regard for a colourable exercise of powers by official of KPT cannot be rejected under order VII rule 11 CPC. It requires a trial as to whether action was in accordance with law or otherwise. The appeal preferred by the applicants met the same fate as it was dismissed.
- I am of the firm view that the issue of notice of eviction to an occupant of the nature as described above is not warranted under the law and on such threat of eviction he cannot wait for a period mentioned in the barring section i.e. Section 87 of KPT Act and is not covered by any of the provisions of Act when status of applicants is adjudged as lessee in the last challan issued. It needs trial for a conclusive determination. When the applicants claimed to have been in occupation as lessee by virtue of challan issued to them the status of licencee was not carried forward and altered to a status of lessee by virtue of such challan and the descriptions provided therein. This is at least tentative view which should have been formed
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AGAINST THE JUDGMENT
Hon'ble Mr. Justice Muhammad Shafi Siddiqui(Author)
Order Date: 13-APR-21
35) 3803/2020 Const. P. Suhaila Hussain (Petitioner) V/S Fed. of Pakistan and Others (Respondent)
Sindh High Court, Karachi
Tag Line:
whether the petitioner was entitled to the benefit of her previous service rendered with effect from 1971 till her reinstatement/re-employment in the year 1990 or not?
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PENSION
Approved for Reporting
Hon'ble Senior Pusine Mr. Justice Irfan Saadat Khan, Hon'ble Mr. Justice Adnan-ul-Karim Memon(Author)
Order Date: 28-MAY-21
36) 971/2020 Const. P. Habib Bank Ltd. (Petitioner) V/S Mst. Neelofar Awan and others (Respondent)
Sindh High Court, Karachi
Topic: Sindh Rented Premises Ordinance,1979 (Section 18), Sindh Rented Premises Ordinance,1979 (Section 16)
Tag Line:
In view of above I am of the view that tentative rent order should have been complied and for the period of March and April, the tenant/petitioner could have asked for adjustment of half of the rent but this was only possible after compliance and not after defiance. The rent of May/June 2020 was alsonot deposited in time. I do not find any portion of the order to be unlawful and hence the principle that since some portion of the order is not lawful, entire order is to be set aside, is not applicable here.
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RENT MATTER Advocates:Mr Naeem Suleman(7422),Rajendar Kumar Chhabria()
Hon'ble Mr. Justice Muhammad Shafi Siddiqui(Author)
Order Date: 05-MAY-21
37) 891/2019 Const. P. M/s United Business Machines thr Muhammad Aslam (Petitioner) V/S Ghulam Hussain Hidayatullah & Others (Respondent)
Sindh High Court, Karachi
Topic: Sindh Rented Premises Ordinance,1979 (Section 15 )
Tag Line:
-Section 15(2)(vii) of Sindh Rented Premises Ordinance, 1979requires demonstration of elements such as (i) honesty of purpose and (ii) reasonableness. From the statement of landlord/owner for the purpose of eviction of a tenant on the ground of personal bona fide need only an honest intention is to be deduced and there is no other formula to adjudge good and bad faith, for the purpose of eviction on the aforesaid count. If the Court on the scrutiny of the evidence comes to the conclusion that it was an honest intention then it would be immaterial whether he remained successful in achieving the object or not that is whether his son or daughter would join him in the business after completing their education. This requirement would be immaterial in the sense that the intention of the father in evicting the tenant was an honest one.Good faith is an abstract term not capable of any rigid definition and ordinary dictionary meaning describes it as "honesty of intention".
-The primary requirement and condition precedent for invoking provision of Section 15(2)(vii) of Sindh Rented Premises Ordinance, 1979 claiming relief on the ground of personal bonafide need of landlord in good faith is that the landlord should be honest in his approach and sincerity of his purpose should be manifested by irreversible evidence and surrounding circumstances.
- Sufficiency of accommodation either for a commercial/industrial activity or for residential purpose is to be adjudged best by the landlord himself and it may vary not only on case to case basis but also on the basis of nature of business that one intends to establish an honest idea about future growth of the business and its prospects. Someone may have an idea of establishing humongous business set up and he may or may not be successful in achieving his object and plan but what is 9important, as a test, is the honesty of intention and there is nothing on record in the shape of cross-examination of the landlord/owner to demonstrate that it was not an honest and genuine intention for extending and enhancing business for himself and for his family members.
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RENT MATTER
Hon'ble Mr. Justice Muhammad Shafi Siddiqui(Author)
Order Date: 25-MAY-21
38) 623/2020 Const. P. Haji Muhammad Siddique (Petitioner) V/S The Province of Sindh through Home Secretary, Karachi & others (Respondent)
Sindh High Court, Bench at Sukkur
Approved for Reporting
Hon'ble Mr. Justice Nazar Akbar, Hon'ble Mr. Justice Muhammad Faisal Kamal Alam
Order Date: 05-MAY-21
39) 664/2008 Suit MRS. SAKINA SULEMAN (Plaintiff) V/S MUHAMMAD ARIF JANJUA (Defendant)
Sindh High Court, Karachi
Matter:DAMAGES
Approved for Reporting
Hon'ble Mr. Justice Nazar Akbar(Author)
Order Date: 31-MAY-21
40) 848/2020 Const. P. M/S. ADAMJEE IMPEX (Petitioner) V/S SHAIKH MUHAMMAD KHALID & OTHERS (Respondent)
Sindh High Court, Karachi
Topic: Sindh Rented Premises Ordinance,1979 (Section 16)
Tag Line:
In view of above, I found that the orders passed under section 16(2) of Sindh Rented Premises Ordinance, 1979 was harsh inasmuch as it struck off the defence without a proper scrutiny of ledgers ofthe rent that has already been deposited in MRC, interestingly in the name of same landlord and there could have been no inconvenience to the respondent/landlord for the recovery of amount from such MRC.
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RENT MATTER Advocates:Ahmed Ali Hussain()
Hon'ble Mr. Justice Muhammad Shafi Siddiqui(Author)
Order Date: 19-APR-21
41) 2068/2016 Const. P. Gulistan Textiles Mills Limited (Petitioner) V/S VIIIth ADJ Karachi South & Another (Respondent)
Sindh High Court, Karachi
Topic: Sindh Rented Premises Ordinance,1979 (Section 8 (Fair Rent))
Tag Line:
- Similarly, a presumptive view in respect of overall inflation and rate of taxes cannot be applied. The maintenance claimed to have been made/done by the landlord/respondent and in support thereof they have filed some accounts and debit vouchers but it pertains to a period w.e.f. March 2007onward. How these debit vouchers and maintenance bills are being applied to entire building and on what calculation and basis its ratio in terms of facilities provided to the premises is being applied, is inconceivable on the strength of the evidence available on record. Floor-wise true calculation is not provided. The presumptive analysis thus is beyond the domain and jurisdiction of the Rent Controller. The statistics in terms of inflation and maintenance charges should have been provided in statement recorded on oath and only then it could have been taken into consideration by the appellate Court. Filing plethora of documents disclosing them as debit vouchers in respect of maintaining the entire building is inconceivable. Statistics showing percentage of taxation over the building in question as well as maintenance as to be applied to entire building and has to be established statistically and not generally. Such data was not provided to Rent Controller. Taxation and maintenance are differently applied on ground floor and upper floors.
- Similarly in presence of lease deeds of the same building between same landlord and tenant or between same landlord and other tenants, the reliance/applicability of rent or fair rent of other buildings in the adjoining locality should not have been applied as a priority, wherein respect of which direct evidence is available. When a building is operated by lifts there is not a serious degree of difference between second and third floor of the same building where premises are situated.
- Though the Rent Controller while determining fair rent of the premises in question has taken a very conservative view by fixing fair rent at Rs.10/-per sq. foot, yet I am of the view that fair rent fixed by the appellate Court is on higher side. The Rent Controller and appellate Court were required to provide a cumulative effect of all those factors available under section 8 of Sindh Rented Premises Ordinance, 1979 subject to availability of evidence though the quantum of inflation and the enhancement of taxation has not been statistically provided in terms of applicability of such claim/charges per sq. foot yet the other factors may contribute for the determination of fair rent.
- The rise in cost of construction has also not been demonstrated statistically. It is only presumptive analysis that cost of construction rises with the passage of time, however, the witness is required to provide data of such rise in cost of construction through his affidavit or any expert witness. It is a difficult assignment but the requirement of law. This burden could be relieved had appropriate lease deeds of same building or of adjoining building having similar facilities could be cited in evidence.
- Section 8(2) of Sindh Rented Premises Ordinance, 1979 enables the Rent Controller to revise such fair rent on account of changes/ additions brought or improving the premises in question which is not the case here. Similarly, there cannot be an automatic enhancement at the rate of 10% per annum on the fair rent in terms of Section 9 of Sindh Rented Premises Ordinance, 1979. It provides a maximum cap of 10% per annum on the existing fair rent and not an automatic enhancement to its maximum. Such enhancement at any particular rate, which in any case should not be 10% per annum, is dependent on certain factors which were not decided in the application under section 8 of Sindh Rented Premises Ordinance, 1979. Besides, there was no prayer for such enhancement under section 9 of Sindh Rented Premises Ordinance, 1979.
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RENT MATTER
Hon'ble Mr. Justice Muhammad Shafi Siddiqui(Author)
Order Date: 25-MAY-21
42) 6244/2019 Const. P. Azizullah (Petitioner) V/S Province of Sindh & Others (Respondent)
Sindh High Court, Karachi
Tag Line:
Whether the Petitioner is qualified for the post of Head Master/Head Mistress in BPS-17 in Education & Literacy Department, Government of Sindh?
ii) Whether the post of Head Master/Head Mistress in BPS-17 in Education & Literacy Department, Government of Sindh is to be filled by 80% by initial appointment through Sindh Public Service Commission (except contract employees) and 20% by promotion amongst the various categories of teachers having 7 years??? service in BPS-16?
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SERVICE
Approved for Reporting
Hon'ble Senior Pusine Mr. Justice Irfan Saadat Khan, Hon'ble Mr. Justice Adnan-ul-Karim Memon(Author)
Order Date: 26-MAY-21
43) 948/2020 Const. P. Muhammad Khalid S/o Wazir Ahmed Khan (Petitioner) V/S The Court of IVth ADJ, Karachi Central and others (Respondent)
Sindh High Court, Karachi
Topic: Family Courts Act, 1964, Sindh Civil Court Rules
Tag Line:
The objections were to the extent that in a family suit the plaintiff seeking Khulla cannot be represented by her attorney. Learned counsel in support of this contention has cited Rule 85 of the Sindh Civil Court Rules and Section 18 of the Family Courts Act, 1964. So far as the earlier Rule of Sindh Chief Court is concerned, the same is not applicable to the proceedings in hand as they are governed by the Family Courts Act, 1964 and perhaps there is no applicability of such rule even on merit. Similarly, so far as Section 18 of the Family Court Act is concerned, it enables a Pardah Nasheen lady to be permitted and represented by an authorized agent. This is an enabling provision and does not restrict the right of a plaintiff who intends to proceed the matter through an attorney to represent her in the court of law including a family suit for the dissolution of marriage.
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FAMILY MATTER
Hon'ble Mr. Justice Muhammad Shafi Siddiqui(Author)
Order Date: 15-APR-21
44) 310/2021 Const. P. Habib Bank Limited (Petitioner) V/S IXth Rent Controller, Khi (Central) & another (Respondent)
Sindh High Court, Karachi
Tag Line:
-Since statute does not provide remedy of appeal, this petition has been filed to invoke jurisdiction of this Court under Article 199 of Constitution of Islamic Republic of Pakistan, 1973. By dismissal of an application under order VII rule 11 CPC, none of the fundamental right of the petitioner was violated to invoke the jurisdiction of this Court.
-The whole gummit of the lis is yet to be decided and hence if an appeal against such order could not be maintained, how this alternate recourse be made available, when no fundamental right of the petitioner seems to have been violated.
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RENT MATTER
Hon'ble Mr. Justice Muhammad Shafi Siddiqui(Author)
Order Date: 07-APR-21
45) 74/2021 R.A (Civil Revision) Ziauddin Gabol S/o Amin Gabol (Applicant) V/S Nabi Bukhsh and others (Respondent)
Sindh High Court, Karachi
Tag Line:
n application for leave to defend was filed by applicant in a summary suit filed for recovery of Rs.14,915,000/-.While considering the leave to defend application,the Court granted the leave to the effect that only 1/3 of the total claim was required to be submitted in terms of surety, which order is impugned in this revision application. Prima facie it appears that a fair discretion was exercised by the trial Court. This is no defence that he (applicant) has no financial means for submitting surety in terms of Order XXXVII CPC.
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AGAINST THE ORDER
Hon'ble Mr. Justice Muhammad Shafi Siddiqui(Author)
Order Date: 16-APR-21
46) 35/2017 II.A. Syed Fasih Iqbal Thr. his Legal Heirs & Others (Appellant) V/S Hassan Sardar & Others (Respondent)
Sindh High Court, Karachi
Tag Line:
Perhaps deciding issue No.1 afresh in this third tier of litigation would be harsh as any party aggrieved of it would be deprived of right of appeal. A fair judicial proceedings includes a right of appeal and only then the spirit of fair trial could be materialized. In my humble view this issue ought to have been decided on merit by the Courts below so that it could be decided conclusively whether any rights in the property were delegated by defendant No.1/applicant to defendant No.2/respondent No.2as only then attorney could delegate such rights further to the plaintiff i.e. respondent No.1 herein as his sub-attorney and a decree of lawful purchaser could be passed in favour of respondent No.1
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AGAINST THE JUDGEMENT
Hon'ble Mr. Justice Muhammad Shafi Siddiqui(Author)
Order Date: 14-APR-21
47) 2695/2017 Const. P. Syed Muhammad S/o Muhammad Anwar (Petitioner) V/S Noorullah & Others (Respondent)
Sindh High Court, Karachi
Tag Line:
-The petitioner while making such statement of alleged purchase has not realized the burden he took over. There is a marked difference in the probative value of entering into possession for the first time as tenant, and continuing in possession with claim of change in its nomenclature. Where occupant claiming his continuous possession as other than original character, it is expected that some trustworthy evidence in furtherance of his subsequently claimed character would be shown, failing whereof his admitted character would concur (Reliance2).
-This PT-1 was then followed by another PT-1, which is claimed by the respondent No.1. This PT-1 then followed by notice under section 18 of Sindh Rented Premises Ordinance, 1979. While recovering taxes in terms of the gross annual rental value, as assessed by authority under ibid Act, constructive possession of the respondent No.1 had been identified and regulated. It may not constitute the ownership but it does authorize the one who was found in constructive possession, to regulate his possession as required under the law. This was thus a jura possession recognized by Sindh Urban Immovable Property Tax Act and rules framed thereunder of 1958. Thus having constructive jura possession with reference to property in question, an authoritative recognition in the shape of PT-1 was issued.
-This PT-1 would enable the respondent No.1 to deal with his possession as deem fit and proper under the law. It is not in dispute that respondent No.1 was and is responsible for payment of annual gross rental value and it is not in dispute that in terms of Section 14 of Sindh Urban Immovable Property Tax Act, 1958, the tax recoverable from any person on account of any building or land, if found in arrears, it shall be lawful for the proscribed authority to serve upon any person paying rent in respect of that building or land or any part thereof to the person from whom the arrears are due, a notice for the recovery of such taxes may be issued to the tenants or one from whom such taxes are required in terms of PT-1. It also enables the authority that if a person willfully fails or neglects to comply with the notice, the authority may after giving him an opportunity of being heard proceed against him as it could have proceeded under the provisions of this act against the defaulter of the tax.
-Thus, in my view this PT-1 authorizes respondent No.1 to deal with this property as deem fit and proper and a lawful notice under section 18 of Sindh Rented Premises Ordinance, 1979 was issued to the petitioner to apprise him about the current situation as to the change of PT-1 and authority of new landlord.
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RENT MATTER
Approved for Reporting
Hon'ble Mr. Justice Muhammad Shafi Siddiqui(Author)
Order Date: 08-APR-21
48) 321/2021 Const. P. Shafiq Ahmed S/o Shabbir Ahmed (Petitioner) V/S Iftikhar Hussain Qureshi and others (Respondent)
Sindh High Court, Karachi
Topic: Sindh Rented Premises Ordinance,1979 (Section 16), Sindh Rented Premises Ordinance,1979 (Section 18)
Tag Line:
Petitioner was inducted in the premises as tenant. He claimed to be in relation with the brother of respondent No.1 Iftikhar Hussain Qureshi as landlord/ tenant who sold this property to his brother. The status of the petitionerwith regard to premises in question would thus remain as a tenant. Petitioner has claimed that no notice under section 18 of Sindh Rented Premises Ordinance, 1979 was served however he concedes that despite receipt of notice of eviction application and the documents,he did not tender the rent to the new landlordi.e. respondent No.1.
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RENT MATTER
Hon'ble Mr. Justice Muhammad Shafi Siddiqui(Author)
Order Date: 15-APR-21